US EPA issues guidelines for diesel fuel used in fracking fluid

In a long-anticipated move, the US Environmental Protection Agency on Tuesday released guidelines for the use of diesel fuel in hydraulic fracturing fluid.

The guidelines bring the agency into compliance with the Energy Policy Act of 2005, the EPA said in a statement. That law, which limited the EPA's authority to regulate fracking under the Safe Drinking Water Act's underground injection control program, left the door open for the agency to regulate the use of diesel fuel in fracking.

Environmental groups praised the decision, while exploration and production industry representatives said the guidelines are largely meaningless, as the industry has long since phased out the use of diesel in favor of more sophisticated fracking chemical cocktails.

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Under the guidelines, EPA defines the statutory term "diesel fuel" to include five categories of material identified by reference to their chemical abstract services registry numbers. The guidance also clarifies the requirements for their use.

"Decisions about permitting hydraulic fracturing operations that use diesel fuels will be made on a case-by-case basis, considering the facts and circumstances of the specific injection activity and applicable statutes, regulations and case law," the EPA said in a statement.

The issuance of the guidelines is based on a portion of the Energy Policy Act that states that the injection of hydraulic fracturing fluid used in the production of oil and gas is exempt from regulations for underground injections under the Safe Drinking Water Act.

This portion of the act, which critics have dubbed "the Halliburton loophole," has its own exemption, which gives the EPA the authority to regulate diesel fuel's use as an ingredient in fracking fluid. The agency moved slowly to undertake a rulemaking process to incorporate the authority it was granted in the statute.

It released a draft of the guidance in May 2012, which was followed by a 105-day public comment period to gain input on the guidance from a wide range of stakeholders.

Lee Fuller, vice president of the Independent Petroleum Producers of America, said the agency should scrap the entire rulemaking process as the guidelines are largely irrelevant and duplicative of the states' regulation of underground injections.

"This appears to be a solution in search of a problem: Based on actual industry practices, diesel fuel use has already been effectively phased out of hydraulic fracturing operations," he said in a statement.

"Even the EPA has admitted that state regulation has been and continues to be protective of water resources," Fuller said. "The guidance is also overly broad, because it covers more than just diesel. EPA needs to withdraw the entire rule and start over based on reality."

However, Democratic lawmakers and representatives of the environmental movement praised the EPA action.

"EPA has taken an important step toward that goal by clarifying the existing requirement that oil and gas companies obtain permits before using diesel in hydraulic fracturing and giving regulators more tools to ensure drilling proceeds safely and responsibly," US House Energy and Commerce Committee Ranking Member Henry Waxman said in a statement.

"Diesel and drinking water don't mix," Earthworks executive director Jennifer Krill said. "That's why, even as they passed the Halliburton loophole to the Safe Drinking Water Act, Congress left the door open for this first-ever EPA oversight of fracking's threat to drinking water."